No Magic Wand…

By Brenda L. Storey, Esq.

I am excited to introduce our new blog series about what divorce does not cover, or address, or fix, or do.   For the first installment, I am focusing on what the court cannot do.   So many times, potential new clients meet with me with great expectations about the power of a divorce court.  Oh how I wish that the Domestic Relations court could fix everything.   Unfortunately, our courts do have limits.   For example, they cannot make more money appear than exists, or change the circumstances of the parties from how they were found, or enter a magic order that addresses parenting shortcomings.    Instead, the courts must enter orders based upon the facts as they exist and apply the current law thereto.

For example, when the market crashed, parties to a divorce had more debts than assets, and more expenses than income.   Their homes were being lost to foreclosure, the breadwinner likely had lost his or her job, and credit cards were maxed.  Oftentimes, bankruptcies were filed, so the divorces were stayed, held in limbo.  Then, once the divorce case could resume, there were even less assets, as what could be used to pay off creditors was so used.   There was not enough money to pay the living expenses of one household, let alone two.  In such cases, the court divided between the parties what few assets remained, divided up between them the debt that remained and responsibility therefore, and left each party to find his/her way to live.  The court is not a financial planner, nor a wizard.  The Court has no magic wand to make more money appear.

Similarly, some people reach their divorce breaking point when their spouse has failed to contribute to family support or participation for years.   They complain what a lazy person the spouse is, and how they have had to support him or her for years.    Though understandable, it does take two for this to continue to happen.  This same person, who allowed this to continue for years, wants it to almost instantly change upon filing for divorce, and are shocked that what transpired over years of their marriage could be grounds for a maintenance award to the other spouse.  But, the court takes the parties as it finds them.   It is true, the court can expect a party to become employed, and if they opt not to, impute income to that party, but such an order is not immediate upon filing and depends on the circumstances of the parties, such as age, health, standard of living enjoyed during the marriage, how long they were supported by the other spouse completely, and so on.   The court is not the backbone of the relationship, nor a wizard.  The Court has no magic wand to make people better than they are – either one of them.

There are all kinds of parenting styles.   Unless a person files for divorce, or DHS gets involved, or you are “blessed” with a busy-body mother-in-law, your parenting is usually not questioned.   However, once divorce is filed, everyone is a critic, and the past is all relevant.   If during the intact marriage one parent spent little time with the children, that will be a hard factor to overcome in the divorce process if instantly seeking substantial time.   If, during the intact marriage one parent cussed in front of the children, at the time of the divorce the other parent can raise it as a concern, but the question is why it was not nipped long before if really a concern.  Some parents are simply not good parents, and no order will change that.   Instead, the goal is to get orders that limit the parenting time with that parent to the extent needed to limit the attendant risk to the children.    The court is not the third parent of the children, nor a wizard.  The Court has no magic wand to make people the perfect parent.

Plain and simple, the court takes the parties as it finds them, and all their baggage to that point, and applies the law to enter orders.   The key is to find a quality lawyer who takes the time to learn all the relevant facts, dig deeper, focus on the most persuasive facts, sets realistic expectations, empowers the client’s voice, and becomes a form of a magic wand when making the argument to the court as to what relief the client seeks.

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